Why Crewmember Status Counts: Ineligibility for Cancellation of Removal or Adjustment of Status.

Simply put, an alien who enters the United States as a crewman, either in form or in circumstance, is ineligible for adjustment of status and cancellation of removal. See INA Section 240A(c)(1), 8 U.S.C. Section 1229b(c)(1); INA Section 245(c), 8 U.S.C. Section 1255(c). Congress’s basic purpose behind these crewmen provisions was an attempt to deal with the problem of the alien who uses the seaman’s route to gain relatively easy access to the U.S. and to enter for the purpose of residing permanently. Matter of Loo, 15 I. & N. Dec. 601, 602 (BIA 1976).

The USS Columbus (1819) and a crewman in Edo Bay in 1846. (Photo credit: Wikipedia)

For anybody hoping to cancel their removal or adjust their status to permanent residency and fighting against this rule, the defense options are limited. Just look at the limited language of the law itself, and you can see that few challenges lie in the wording. Are you an alien? Most likely. Did you enter the U.S.? If not, you wouldn’t be challenging a ruling to deport you or denying your adjustment of status (“AOS”).

But, did you enter as a crewman?

Bingo.

As to be expected, the question of whether an alien qualified as a crewman is the great sticking point. As the Supreme Court has stated, whether or not a person is a member of a crew turns on questions of law and fact and “does not have an absolutely unvarying legal significance.” South Chicago Coal and Dock Co. v. Bassett, 309 U.S. 251, 258 (1940); Matter of M/T “Rajendra Prasad”, 16 I. & N. Dec. 705, 707 (1979). What formalities and circumstances are encompassed in a “crewman” status is the subject of substantial legal debate and case law. This large body of case law and administrative decisions have formed a general consensus that the prohibition on AOS or COR (“Cancellation of Removal”) includes any alien who, on arrival in the U.S., was serving in any capacity on board a vessel or aircraft or was destined to join a vessel or aircraft in the U.S. to serve in any capacity thereon, as well as an alien admitted to the U.S. on a crewmember visa. Thus, an alien admitted to the U.S. with other than a crewmember visa, but entering for purposes of being a crewmember, is barred from AOS or COR. In order to be subject to this bar, the alien must be serving, or be destined to serve, aboard a vessel in a capacity required for the vessel’s normal operation, and must be seeking to enter, or have entered the U.S. because of his or her occupation in that role. However, an alien crewmember who presents a valid B-2 visa and is admitted to the U.S. as a bona fide temporary visitor, and is not admitted in order to pursue his or her calling as a crewmember, is not statutorily barred from applying for AOS or COR.

View of SS MONTORO showing six crewmen leaning on the ship’s rail, 1920-1950 (Photo credit: Australian National Maritime Museum on The Commons)

The Test

If you, the reader, take anything from this article, it should be the following two-prong inquiry in determining whether an alien was admitted as a crewman: the Court MUST examine both (1) the alien’s visa, as well as (2) the circumstances surrounding his entry into the U.S., to ascertain whether they entered in pursuit of their occupation as a seaman. This plainly ambiguous test leaves lots of room for factual differentiation on a case-by-case basis. Thus, to help flesh out the circumstances that have led to a ruling of eligibility or ineligibility, we have described 19 key cases from the annals of crewmember case law (SEE NEXT ARTICLE). Before we get to the cases, we should cover some beginner’s ground.

A Crewman’s Definition

Cruise Ship – Celebrity Infinity (Photo credit: blmiers2)

The general rule is that the term crewman is defined as “a person serving in any capacity on board a vessel or aircraft” “who intends to land temporarily and solely in pursuit of his calling as a crewman and to depart from the United States with the vessel or aircraft on which he arrived or some other vessel or aircraft.” INA Section 101(a)(10), (15)(D)(i) 8 U.S.C. Section 1101(a)(10), (15)(D)(i). In determining whether an alien should be considered a crewman, the type of visa the alien possessed and the circumstances surrounding the alien’s admission into the United States are examined. In re G-D-M-, 25 I. & N. Dec. 82, 84-85 (BIA 2009). See e.g.Chica-Roman v. Attorney General of U.S., 462 Fed. Appx. 221 (3d Cir. 2012).

Notice the double-quote and double-cite in the general rule. The term crewman is defined twice separately in the Immigration and Nationality Act. The first INA section describes a crewman as “a person serving in any capacity on board a vessel or aircraft.” 8 U.S.C. Section 1101(a)(10). The second INA section defines an “alien crewman” as an individual “serving in good faith as such in a capacity required for normal operation and service on board a vessel . . . who intends to land temporarily and solely in pursuit of his calling as a crewman and to depart from the United States with the vessel or aircraft on which he arrived or some other vessel or aircraft.” 8 U.S.C. Section 1101(a)(15)(D)(i).

Also, remember that it is the D-1 classification that provides a crewmember status. A “D-1” classification is given to “an alien crewman . . . who intends to land temporarily and solely in pursuit of his calling as a crewman and to depart from the United States with the vessel or aircraft on which he arrived or some other vessel or aircraft.” 8 U.S.C. Section 1101(a)(15)(D)(i); see also 8 C.F.R. Section 214.1(a)(2). On the other hand, a “C-1” classification is given to “an alien in immediate and continuous transit through the United States.” 8 U.S.C. Section 1101(a)(15)(C); see also8 C.F.R. Section 214.1(a)(2).

Novara_barge (Photo credit: Alphast)

Nowadays, an alien crewman traveling to meet a vessel in the U.S. is issued a “C-1/D” visa, which is a dual “C-1” and “D” visa. A “D” visa is given to a nonimmigrant alien serving aboard a vessel or aircraft “who intends to land temporariy in pursuit of his calling as a crewman and to depart from the U.S. with the vessel or aircraft on which he arrived or some other vessel or aircraft.” A “C-1” visa is given to a nonimmigrant alien in immediate and continuous transit through the U.S. If you get the D on your visa, it indicates that a consular officer gave you “alien crewman” status under the INA. See 22 C.F.R. Sections 41.12 and 41.41; see also Petitson v. U.S. Atty. Gen., (11th Cir. 2012).

The BIA “examines an alien’s visa and the circumstances surrounding his entry into the United States to determine if he entered as a crewman.” Matter of G-D-M-, 25 I. & N. Dec. 82, 85 (BIA 2009). “If it is apparent . . . that the alien was issued a visa as a crewman and entered the United States in pursuit of his occupation as a seaman, then he is to be regarded as an alien crewman.” Id. If you are determined to be a crewman or crewmember, then you will not be eligible to apply for the standard Cancellation of Removal, nor will you be eligible to apply for Adjustment of Status to become a permanent resident. The Courts consistently hold that by choosing to seek entry to the U.S. as a crewman, a person agrees to the limitations associated with that status, and he will not be later allowed to avoid the consequences of those restrictions in removal proceedings by claiming that he may not be a crewman after all.

Prior Crewman Are Not Crewmen Now, Right? – The B-2 Exception

However, an alien may not be a “crewman” even if his means of arrival in the U.S. was as a crewman or he had previously entered as a crewman, provided that his most recent admission was not as a crewman; in particular, if he was admitted as a B-2 visitor. Matter of Rebelo, 13 I. & N. Dec. 84 (BIA 1968) (holding that an alien admitted with a B-2 nonimmigrant visitor’s visa was not entering as a crewman, even though he was serving as a ship’s engineer); Matter of Quintero-Correa, 11 I. & N. Dec. 343 (BIA 1964) (finding that an alien admitted with a B-2 nonimmigrant visitor’s visa was not entering as a cewman arriving aboard a freighter, although he earned half his fare by serving meals to the crew and washing dishes).

Although the B-2 exception has succeeded in limited cases, it is still an option. Nevertheless, the Courts will exhaust a fact-intensive review of your immigration and occupational history in the search for circumstances that show your intent to enter as a crewman. Adding to the challenge, the alien must prove by a preponderance of the evidence that he did not intend to enter as a crewman.

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Andrew John Bernhard, Esq.

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